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Selvi T.

Selvi T.,
a petite 22-year-old pregnant with her fifth child, represents everything
that can go horribly wrong when domestic violence is not taken seriously.

Born in
southeastern Turkey [exact location withheld], Selvi moved to a government
“dormitory” for children in the west of Turkey when her father
died. In 2000, when she was 12, Selvi’s family arranged for her to be
married. Her husband took her back to the southeast against her will.

Her
husband started his attacks when she was pregnant with their first child.
“That first time, he hit me, he kicked the baby in my belly, and he
threw me off the roof,” she said. “The baby survived but I think
[the child] has a mental illness.” Since then, the violence has
increased in frequency and severity, and now even includes their children.
Selvi’s husband controls every aspect of her life and is extremely
jealous. She told us: “He rapes me all the time, and he checks my
fluids ‘down there’ to check I didn’t have sex [with
another man].”

In 2008
Selvi finally went to the police, after her husband had “broken her
skull and arm.” The police brought her husband to the station, gave the
couple some food, and sent them home, telling her, “There’s no
problem, we spoke to him, you’re back together.” The second time
Selvi went to police, they brought her to the hospital as she was bleeding
from her head where he had hit her with a rock. Nevertheless, they told her
she should reconcile with her spouse.

At this point in 2009 Selvi’s husband locked her in a room and
beat her every day. When she escaped and went to the police a third time,
they called the husband and he apologized. The police sent her home
again. In 2010 Selvi went to the police a fourth time when her husband
brought friends home late at night, and he “offered” Selvi to
them. To escape, she jumped off the roof and ran to the police station. Her
husband told the police she was lying. They believed him. “Just go back
with your husband and stay there,” she was told.

Selvi
secretly went to the family court but told the prosecutor she was too afraid
to make a formal complaint. As the case was so serious, the prosecutor
started a procedure independently to secure a protection order for Selvi. The
court ordered Selvi’s husband to stay away from her and pay her
maintenance. But the order was not enforced. He made no maintenance payments,
never moved out, and still beats her. The police never checked up on her
after the order was issued. Selvi told us: “I just cannot go to the police
anymore, since he threatens to break my legs… [if I do that].”

At one
stage, Selvi spent two months at a shelter, a step that proved to be an
unsatisfactory solution. “It was very bad; I could only take my oldest
daughter. The others had to stay with my mother,” she said.
What’s more, the shelter did not keep Selvi safe from her husband, who
turned up one day; the police had revealed the shelter’s location. A
woman working at the shelter told Selvi: “Just talk to your husband, he
is here, crying.” When she did, he stabbed a fork into her forearm,
resulting in a scar that Selvi displayed in the interview. He took her home.

The abuse
was continuing when we spoke to Selvi in June 2010. Her husband lives with
her, rarely works, gambles, does not pay the bills, and frequently beats her
and the children. She is too afraid to send the children to a government
dormitory, and too terrified to escape. She cannot get prenatal
care—assistance that is urgent since the abuse involves kicks to her
abdomen—because her state health insurance “green” card was
among the civil documents her husband burned on one occasion.

A
municipal women’s group is aware of Selvi’s situation and is
providing assistance, but she sees no way out for herself or her children.

Summary

“It always happened at night,” Hamiyet M. told
Human Rights Watch. For 24 long years, Hamiyet’s husband had abused her
by severely beating her and raping her almost daily. When she finally summoned
the courage to go to police in her town in eastern Turkey, they sent her home,
twice. The beatings continued, in one instance proving so severe she wound up
in hospital where she spoke with a police officer for a third time. Yet
again, she received neither sympathy nor help. “Are we supposed to deal
with you all the time?” the officer scolded.

Some 42 percent of all women older than 15 in Turkey and 47
percent of women living in the country’s rural areas—approximately
eleven million women in total—have experienced physical or sexual
violence at the hands of a husband or partner at some point in their lives,
according to a 2009 survey conducted by a leading Turkish university.

Female domestic violence survivors, lawyers, and local
experts on family violence interviewed for this report described husbands and
family members inflicting brutal and long-lasting violence on women and girls
that in some cases lasted for decades, affecting several generations of women.
Researchers documented women and girls as young as 14 being raped; stabbed;
kicked in the abdomen when pregnant; beaten with hammers, sticks, branches, and
hoses to the point of broken bones and fractured skulls; locked up with dogs or
other animals; starved; shot with a stun gun; injected with poison; pushed off
a roof; and subjected to severe psychological violence. The violence occurred
in all areas where researchers conducted interviews, and across income and
education levels.

In recent years Turkey has taken important legislative steps
towards addressing violence against women. But despite these impressive
advances, most notably Law 4320 on the Protection of the Family (“Law
4320” or “protection law”), remaining gaps in the law and
failures of implementation make the protection system unpredictable at best,
and at times downright dangerous. Furthermore, this legislative process is
undermined by the government’s failure to better prevent abuse in the
first place, change discriminatory attitudes, and effectively address the
barriers that deter women and girls from reporting abuse and accessing protection.

This report focuses on
the civil remedies available in Turkey to survivors of domestic violence. These
options—which aim to provide immediate protection from harm, create space
for a victim to decide her course of action, and prevent an abuser hampering
criminal or divorce proceedings with intimidation or threats—take two
main forms. The first is physical protection in shelters, the second is civil
protection orders—emergency measures intended to stop further abuse,
which is common in domestic violence cases, including instructions to an abuser
to stay away from the house and refrain from violence against the victim.

The research found that implementation of Law 4320 regularly
falls short because enforcement officers, judges, and prosecutors neglect their
duties, often due to lack of expertise or will to deal with cases of violence
against women and girls in a manner that is effective and sensitive to the
needs and human rights of victims. Women who do report family violence to
police risk being turned away, and face poor enforcement of protection orders:
indeed, some women have been murdered after obtaining a protection order
against their killer. Shelters are lacking, and those that do exist often
exclude certain groups of women, restrict movement and communications, and are
vulnerable to security breaches. Environments in which women are supposed to
report violence—particularly police stations and family
courts—often lack the private space necessary to do so. In addition,
differing understandings of the law—specifically, the scope of
eligibility for protection orders—undermine its effectiveness and can
exclude the most vulnerable victims of domestic violence.

The following four sections provide a basic explanation of
the family protection law in Turkey, and summarize the main findings of the
report in three areas: the exclusion of certain groups of women because of gaps
in law, the problematic implementation of the law, and issues around shelters.

Law on the Protection of the Family

Turkey entered the vanguard of countries offering civil
mechanisms to protect against domestic violence with its 1998 adoption of Law
4320 on the Protection of the Family. The law, amended in 2007, established a
protection order system whereby a person subjected to abuse by a family member
living under the same roof, male or female, can apply directly or through a
prosecutor for an order from a family court. It is intended that these orders
be issued quickly, within days at most, since the individuals who apply for
them are often in extremely dangerous situations.

A family court judge can issue a protection order for
a maximum of six months, which can require that an offender vacate the home;
stay away from the home or school of the victim and their children; surrender
weapons; and refrain from violence, threats, damaging property, contacting the
victim, or using intoxicating substances in the house. The order can be renewed
for another six months if a new case or situation arises involving violence.
The judge can require the abuser to make maintenance payments to the victim.

Excluded from Protection

For unmarried and divorced women, and women in religious
(unregistered) marriages, access to protection is essentially a lottery.
According to Law 4320, protection orders are available to a spouse, child, or
other family members if they live under the same roof.[1]

Yet prosecutors, judges, and law enforcement officers in the
same cities and even the same court houses hold conflicting views on the scope
of eligibility of protection orders. Judges told Human Rights Watch they do
sometimes interpret the law flexibly to grant protection orders to divorced and
unmarried women, or women who are married according to a religious but not
civil marriage. Prosecutors said there is no such discretion, and that only
spouses married under the Civil Code are eligible. Some police told Human
Rights Watch they would pursue protection orders for unmarried partners, but
this is inconsistent at best.

Lack of Implementation

Domestic violence survivors who reach out for help face
significant barriers. In situations of domestic violence, family members or
husbands often control a woman to such an extent that she is physically,
psychologically, or economically incapable of seeking help.

Many women also lack confidence in the police and other
authorities because of their own past bad experiences, or those of family
members and friends. In predominantly Kurdish southeast Turkey, years of
regional conflict have contributed to fundamental mistrust of the state and
police, which further deters women from reporting violence. Practical barriers,
such as lack of interpreters and limited opening hours of family courts, also
stop women from asking for a protection order.

When women do report family violence to police, they risk
being turned away. Law enforcement officers often prioritize preserving family
unity, and push battered women to reconcile with abusers rather than pursuing
criminal investigations or assisting women in getting protection orders. Law
enforcement trainings and public pressure have led to some progress, but much
still needs to be done before abused women can count on their complaints and
safety being taken seriously.

Survivors of abuse who are referred to family courts for
protection orders face yet more barriers. Prosecutors are sometimes reluctant
to forward a request to a judge or to start the process of their own accord;
judges may take too long to decide whether to grant an order, or may require
medical or other forms of evidence that is not required for an emergency
protection order by national law. This causes delays and may even end the
process if a woman is unable to obtain a medical record or witness statements.

Once issued, a protection order only has value if it is
enforced, which requires law enforcement diligence and action. In no case that
researchers documented did police check on the woman weekly, as required by
law. Even worse, officers often did not respond to calls from women whose
husband or family members returned to the house and threatened them.

Shelters

A practical—if temporary—way to offer a woman
protection from abuse is to provide a safe place to stay in a shelter. The
government has set itself a target: every municipality with 50,000 or more
residents should have a shelter for women, as stipulated in the Law on
Municipalities. Currently, the government is more than 100 shelters short of
achieving this goal.

Besides the shelter shortage, Human Rights Watch documented
problems with existing shelters. Some exclude certain women, including pregnant
and undocumented women, and women with psychological or physical disabilities.
Security breaches also occur when police or school records disclose shelter
locations. Women also complained about shelter conditions, especially regarding
restrictions on movement and communications.

***

The report focuses on civil remedies and the emergency
protection system. They are crucial given their direct protection function, and
Human Rights Watch chose to focus on this element of the response to domestic
violence because of the inherent dangers of bad implementation, as well as
opportunities for a draft law amending the Family Protection Law to be adopted
by parliament before or after the 2011 election. This report does not focus on
Turkey’s criminal justice system, but this should not be taken as any
comment on the importance that Human Rights Watch places on the central role of
criminal prosecutions in combating the serious crime of domestic violence.
Indeed, prosecutions for such violence are a part of mounting a comprehensive
response to the country’s epidemic of domestic violence, which not only
violates Turkish, but also international and regional law.

Human Rights Watch recommends that Turkey close the gaps in
its family protection law by explicitly providing that protection orders may be
issued to unmarried and divorced women, including women in unregistered
religious marriages. The Ministry of Justice and the Ministry of Interior
should create dedicated units at police stations and family courts that have
specialized staff who can refer women to social services and deal with their
protection claims. The Ministry of Interior should develop a complaint
mechanism to identify police officers, prosecutors, and judges who do not
uphold the law or who mistreat domestic violence survivors. Overall monitoring
of the protection order system is also needed, with more specific, publicly
available data on the use of the protection system. More shelters are
needed, and both the Interior and Justice Ministries should continue to train
police officers, and focus on training prosecutors and judges regarding the
practical requirements of Law 4320 and each actor’s role in the process.

Finally, at a time when the Council of Europe is about to
adopt a new region-wide draft convention on preventing and combating violence
against women and domestic violence, Turkey’s government should seek to
ensure that Family Protection Law 4320 not only accords with the draft text in
design but also in implementation, something it currently fails to do.

Methodology

This report is based on research conducted by three Human
Rights Watch researchers in Ankara, Istanbul, Trabzon, Izmir, Van, and
Diyarbakır in June, July, and November 2010, as well as telephone
interviews throughout 2010. We interviewed 21 women who had experienced
violence and had sought protection from the state, and analyzed 19 domestic
violence case files that lawyers and a family court judge had given Human
Rights Watch.

We also interviewed a representative of the Directorate
General on the Status of Women in Ankara, local social service officials in
several municipalities, family judges, chief prosecutors, police officers,
mayors, and municipality staff. Human Rights Watch requested interviews with
the Ministry of the Interior, the Ministry of Justice, and the Prime Ministry
Social Services and Child Protection Agency (SHCEK), both directly and through
contacts with the Ministry of Foreign Affairs and Turkish Embassy officials in
the countries where the researchers are based. However, we received no response
and were unable to conduct interviews with these offices in Ankara during the
research phase. New requests for meetings are outstanding.

In addition, we interviewed 28 lawyers and representatives
of nongovernmental organizations (NGOs) working on domestic violence cases,
academic experts on violence against women in Turkey, United Nations officials
supporting anti-violence programs in Turkey, representatives of
bi-lateral donors, and European Commission representatives.

The survivors of domestic violence who we interviewed were
identified by lawyers, social service providers, shelter staff, and other
women’s rights advocates.

Interviews were conducted in Turkish with the assistance of
an interpreter, one interview was partly conducted in Kurdish with an
interpreter, and others in English. Female interviewers and interpreters
conducted all interviews. Researchers interviewed women in private rooms. Most
interviews were done individually, except in a few instances where interviewees
preferred to speak in small groups.

No interviewee received compensation for providing
information. Three women received a small amount for the travel fare they spent
to reach the interview location. Where appropriate, Human Rights Watch provided
contact information for organizations offering legal, counseling, or social
services. In several cases, we connected women with other needed services.

Pseudonyms have been used to protect the anonymity of
interviewees, who all requested their real names not be used for reasons of
security. Pseudonyms were selected randomly, and may not reflect their
background or region. The exact dates of interviews, the location of
interviews, as well as additional identifying details have sometimes been
withheld.

Domestic violence takes place against both genders. However,
women make up the overwhelming majority of victims of domestic violence. This
report focuses on domestic violence as a form of violence against women.

I. Background

I was 10 when my father gave me to a family. I was
abused and beaten up. Now I have to see my daughter go through the same. What
about her baby?

—Emel S., Van city, June 15, 2010

Domestic violence exists in all sections of society, in all
countries, including all Council of Europe member states. While factors such as
ethnicity, religion, economic status, class, sexual orientation, and disability
may shape the violence, it is not confined to any particular culture, country,
or religion. In the Council of Europe region, roughly one in four women experiences
violence at some point in her life.[2]

Prevalence of Domestic Violence in Turkey

Turkey is no exception to this disturbing picture. In
January 2009, the Turkish Hacettepe University published the first-ever
comprehensive nationwide survey on the prevalence of domestic violence against
women in Turkey. Comprising interviews with over 12,000 women in all
regions of Turkey, it found that 42 percent of women in Turkey aged 15-60, and
47 percent of women in rural areas, had experienced physical and/or sexual
violence by their husbands or partners at some point in their lives.[3]
This means at least eleven million women have faced or are facing physical or
sexual violence in Turkey.[4]
This did not include other forms of violence, or violence by other family members.

The study also found that only 8 percent of women who have
experienced sexual or physical violence seek help from any institution, NGO, or
other source of support.[5]
A different academic study conducted in 2009 concludes that only around 3
percent of women told the muhtar (elected village or neighborhood
official), police, gendarme, a lawyer, or public prosecutor about their
experience of domestic violence.[6]

Unequal Status

The scale of violence that women experience, and their
reluctance to seek help, is intrinsically linked to their unequal status in
Turkish society.

Since 2007, women have held just 9 percent of seats in the
national parliament,[7]
and only 27 of the nearly 3,000 mayors in the country are female.[8]
Women represent 27 percent of the paid work force.[9] 19
percent of women are engaged in income-generating work in Turkey, and in the
east this is roughly 10 percent.[10]
New illiteracy figures released by the government show great disparities
between men and women: 3.8 million of the 4.7 million people who are illiterate
in Turkey are women.[11]
In 2010, Turkey ranked 83 on the United Nations Development Programme’s
2010 global Gender Inequality Index—third to last in the group of
countries with “high human development,” and down six places
compared to the 2008 Index.[12]

Reforms and Civil Society Efforts

Turkey has in recent years passed major legislative reforms
in the area of women’s human rights including: adopting the Law on the
Protection of the Family 1998; the Turkish Civil Code, reformed in 2001; and
the reform of the Turkish Penal Code in 2004-05 (discussed in detail in the
next chapter).

The Turkish government, which moved to introduce legal
reform in the course of Turkey’s bid to become an EU accession candidate
starting with its application for membership in 1987, deserves due credit for
such changes. However, reforms relating to strengthening the protection
of women’s rights resulted from campaigns to effect structural, national
advancements in women’s rights run by women’s rights NGOs, including
Women for Women’s Human Rights—New Ways; KA-DER; Mor Çati;
KAMER; the Van Women’s Association; the Women’s Coordination Group;
and others making up the Turkish Penal Code Women’s
Platform (TCK Kadın Platformu).
In addition to these coordinated efforts, numerous strong groups of lawyers and
activists are also working at a local level to lend women practical support. It
is they who take women to the police and hospitals, who represent women in
court, and who continue to fight to translate legal advances into practical
benefits for women throughout the country.

Government Agencies Involved in Responding to
Domestic Violence

Several government departments, officially coordinated by
the Directorate General on the Status of Women, play a role in the fight
against domestic violence.[13]
The Ministry of Justice is responsible for the judiciary, the Ministry of
Interior for the police and partly the gendarmerie, and the Prime Ministry
Social Services and Child Protection Agency for most of the shelters and other
support services where they are available.

Cities in Turkey are organized along two lines of public
administration: governorships (appointed by the central state), and local
governments or municipalities (elected by the local population). Every city has
one governor’s office. The governor is the highest state officer in a
city and in charge of all other state offices in a province (81 in total), such
as the education directorate, health directorate, social services directorate,
and police department. Municipalities also provide services to citizens, and
can run their own shelters and social services agencies.

Evolution of Civil Protection Orders in Legal
Systems around the World

Many countries have
adopted systems for authorities – law enforcement or courts – to
issue protection or restraining orders, including for example the United
States, the United Kingdom, The Netherlands, Austria, and Poland.
Internationally, protection orders are consistently seen as a key ingredient in
the fight against domestic violence. Separate from criminal prosecutions
and divorce proceedings, these orders instruct an abuser to stay away from the
house, and refrain from violence against the victim or children. Depending on
the system, such orders may be issued on the application of one party alone for
a limited period on an emergency basis either by a law enforcement or judicial
authority, or may be a permanent order issued following a hearing with due
process. The fundamental purpose of a civil protection (restraining) order is
not to punish past conduct, but to prevent potential future harm.[14] These measures also create space for a
victim to decide her course of action, and prevent the abuser hampering
criminal or divorce proceedings through intimidation or threats.

In 1997, the UN General Assembly adopted a resolution that
promotes the model of protection orders: “Courts, subject to the
constitution of their State, have the authority to issue protection and
restraining orders in cases of violence against women, including removal of the
perpetrator from the domicile, prohibiting further contact with the victim and
other affected parties, inside and outside the domicile, and to impose
penalties for breaches of these orders.”[15]

Protection orders require a judge to balance evidence of the
danger to the life and health of the woman with the rights of the respondent
– the person accused of carrying out abuse, but who has not faced a
process in court to establish that fact. Countries have battled with this
balance, and the newly negotiated Draft Council of Europe Convention on
Prevention and Combating Violence Against Women and Domestic Violence, gives
some guidance on the issue:

In situations of immediate danger, the most effective way
of guaranteeing the safety of a domestic violence victim is by achieving
physical distance between the victim and the perpetrator. In many cases, this
requires one of the two to leave, for a certain period of time, the joint
residence or the perpetrator to leave the victim’s residence. Rather than
placing the burden of hurriedly seeking safety in a shelter or elsewhere on the
victim, who is often accompanied by dependent children, often with very few
personal affairs and for an indefinite period of time, the drafters considered
it important to ensure the removal of the perpetrator to allow the victim to
remain in the home.[16]

As Turkey continues its ongoing review of the protection
order system, it can look to examples from other countries to ensure that the
rights of both victims and respondents are protected. If it moves toward
instituting permanent or longer-term protection orders beyond those currently
intended to address emergencies, it should consider instituting clearer rules
around holding a hearing for the respondent in court. In some other jurisdictions,
this due process protection is part of the overall civil protection order
system.

II. Legal Reforms and Gaps

Projects are great, but we need a more permanent
setting. We need a steadfast and consistent attitude of the government.

—Filiz Kerestecioğlu,
lawyer, Istanbul, November 12, 2010

The Turkish government’s response to domestic violence
is full of contradictions, and gains and gaps explored below.

On the one hand, parliament has adopted crucial changes to
the Penal and Civil Codes that remove discriminatory provisions and banish the
possibility that someone who kills a woman allegedly to preserve family
“honor” could get a reduced sentence. On the other hand, gaps
remain in the laws, and many law enforcement officials emphasize preserving the
family as a unit, rather than protecting domestic violence survivors.

Another contradiction is that the government has established
a Directorate General on the Status of Women to coordinate work on
women’s rights in Turkey that has a small budget, no offices outside
Ankara, and no power to monitor implementation of domestic violence laws.

The government’s inconsistent response to domestic
violence and women’s rights reflects a wider societal ambivalence about
women’s changing roles. As one advocate put it, many people in Turkey
believe “the rise of women is the fall of family.”[17]

Law 4320 on the Protection of the Family:
Uncertainties and Gaps

Turkey entered the vanguard of countries offering civil
mechanisms to protect against domestic violence with its 1998 adoption of Law
4320 on the Protection of the Family (“Law 4320” or
“protection law”).[18]

This law (as amended in 2007) established a protection order
system whereby a person subjected to abuse by a family member living under the
same roof can apply directly or through a prosecutor for an order from a family
court. A family court judge can issue a protection order for a maximum of six
months and the order can require that the offender refrain from violence and
threats; vacate the home; stay away from the home or school of the victim and
their children; refrain from damaging property or contacting the victim;
surrender weapons; or refrain from using intoxicating substances in the house.
The order can be renewed for six months if there is a new violation.[19]
The judge can order other measures “deemed appropriate,” and can
require the abuser to make maintenance payments to the victim. The intent is
that these orders be issued quickly, within days at most, since the women are
often in extremely dangerous situations.

In practice, a woman might go to police, who should fill out
a risk assessment form and explain to her how the protection procedure works.
In March 2008 a detailed regulation on the implementation of Law 4320 further
stipulated details of this mechanism, stating that law enforcement agents must
monitor compliance with the order, including visiting the house weekly, and
that no fee should be charged for a protection order.[20]

According to the law and its amendments, protection orders
are available to a spouse, child, or other family member living under the same
roof as an abuser, even if a married couple is separated.[21]

However, views vary among officials charged with
implementing the law as to what constitutes a spouse or other
“family” members for purposes of protection orders. This variation
in turn undermines the law’s effectiveness by making access to protection
against violence essentially a lottery for many women.

The strictest reading of this provision would result in
protection orders being available only to spouses married under the Civil Code,
as opposed to fairly common religious marriages,[22]
which are not recognized in law.[23]
A more liberal reading would enable divorced women, and those married in religious ceremonies only to access protection orders as
well.

Prosecutors, judges, and law enforcement officers in the
same cities and even the same court houses sometimes hold conflicting views on
the scope of eligibility for protection orders. Several judges told Human
Rights Watch they feel they have a great deal of discretion in terms of
eligibility, enabling them to grant orders to divorced, unmarried, or
religiously married women. However, the prosecutors whom Human Rights Watch
spoke to argued that there is no such discretion, and that only spouses married
under the Civil Code are eligible. For example, the chief prosecutor in Van
told Human Rights Watch:

It’s the family protection law, so without family
there is no protection. It only applies to people who are married. Living
together without marriage is not considered to be good, so they cannot apply.
Couples who live together can go to social services.[24]

In three interviews in Diyarbakır, southeast Turkey,
the three main authorities involved in handling protection orders gave
different answers about eligibility. A family judge in Diyarbakır told
Human Rights Watch “we apply Law 4320 to religious marriages as well, as
long as people are living together.”[25] The chief
prosecutor in Diyarbakır told Human Rights Watch: “When couples are
not married [officially], maybe in Ankara some get a case, but not here since
it is not written in the law [4320].... Personally I believe it probably should
be in the law, but since it is not, we don’t do it.”[26]
At a police station in the same city, the station chief said, “[T]he Law
[4320] does not say ‘married’ so it can also be applied to others.
Even if they just have a religious marriage, the process is the same.”[27]

Human Rights Watch documented several cases in which women
needed protection, but did not get a protection order because officials
handling their cases took a narrow view of the law. For example, according to
her lawyer, Pinar A., 22, from Izmir, western Turkey, was “dragged across
the floor, offered for sexual services against her will, beaten up in front of
her child by this man [her boyfriend] as well as his mother. Pinar’s
boyfriend also abducted their four-year-old daughter and continued to send her
death threats.”[28]
She petitioned for a protection order for both her and her daughter twice. In
May 2010, the Izmir family court rejected both applications on the grounds that
she was not married. They were in a relationship and had a child together, but
were not married.[29]

Gülşah
S., 22, from Van also sought a protection order, which she was denied because
she was in a religious marriage.[30]
She moved into her husband’s family’s house and several family
members beat, raped, and starved her, and tried to kill her infant. She said:

[My father-in-law] forced himself on me several times. The
family did not give me food. Once I went to the hospital because I had bad pain
in my stomach and the doctor told me, ‘You are starving, that’s
why’… When I got pregnant, they tried to force an abortion on me,
and then they tried to kill the baby when they saw it was a girl. Now they try
to take the baby away, but what will they do with her?[31]

Gülşah
escaped in early 2010 and now lives with her mother in Van. However, her
in-laws were still seeking custody of the child when we spoke to her in June
2010, and the family court in Van had rejected her petition for a protection
order two months earlier because her marriage is not considered official.[32]

Zelal K., who is in her forties, was also denied a
protection order, in her case because she was divorced. Zelal lives in Istanbul
with her three children, and divorced eight years ago.[33]
Her ex-husband lives across the street, and one day in January 2008, he grabbed
her when she walked out of her house. She told Human Rights Watch:

He held me, I screamed, “Let me go,” and he started
beating me. There were a lot of people around us, but nobody did anything. He
pulled my hair and covered my mouth, and he dragged me to my house. There he
kicked me and I fell to the ground…. He broke every possession I have in
the house, every chair, every picture, everything. Then he took off my clothes
and he raped me.[34]

Zelal managed to escape, almost naked, and went to two
different police stations, where she was turned away for different reasons
ranging from “wrong police office” to “Why are you bothering
us with this?”[35]
She eventually managed to speak with a prosecutor. He refused to accept her
application for a protection order because she was divorced.[36]

The deputy director of the Directorate General on the Status
of Women told Human Rights Watch:

We have come a long way with this law [4320] but now we
need to focus on the implementation and what is needed in practice.... It
should be possible for the law to change to include other women, because laws
need to be created by society.[37]

Some lawyers use international conventions, such as
Convention on the Elimination of all Forms of Discrimination Against Women
(CEDAW), to argue there should be no discrimination against women in terms of
their eligibility for protection orders. However, some judges have dismissed
this argument, in one case saying, “National law is our law, don’t
come to us with this,” and in another, “International law does not
apply to our traditions.”[38]
This is despite article 90 of the Turkish Constitution, which states that
national law cannot override international agreements that pass into law.[39]

Other judges have cited regional or international law as a
basis for granting protection orders to unmarried applicants. A judge in a
highly publicized case from Istanbul ruled that, “Even though the parties
are not officially married, they live together with the same intention.”[40]
He referred to European and international human rights standards, explaining,
“Turkey has an obligation in international law to protect women from violence.”[41]

Penal and Civil Code Reforms

Turkey has undertaken major Civil and Penal Code reforms in
the past fifteen years, many of which constitute impressive gains for
women’s rights.

Before the reforms, Turkish law explicitly granted men
supremacy in marriage, allowed reduced criminal sentencing for honor killings,
and deprived women of many of their property rights. As a result of the
reforms, Turkey’s Civil and Penal Codes now include:

Increased sentences for murders in the name of
“custom,” (replacing the prior provision that reduced
sentences for “honor” murders);[43]

Even though there is no specific article regulating the
crime of domestic violence, article 96 of the new Penal Code stipulates
that anyone causing torment to their spouse or family members will be
sentenced to three to eight years in prison. Article 232 of the Penal Code
provides for imprisonment of up to one year for the maltreatment of anyone
living under the same roof;[44]

Equal rights to custody of children for married spouses,
and automatic custody for mothers if the parents are not married;[49]

Naile Erdaş

Prosecutors
have been able to use the changed Penal Code to prosecute people who commit
honor crimes. In 2009 a judge in Van city convicted five members of the same
family to life in prison for killing Naile Erdaş, who was 16. Erdaş fell pregnant as a result of rape
but concealed her condition until doctors discovered she was pregnant when
she was hospitalized for a severe headache. When the family made threats and
offered bribes to get the girl back, doctors decided to keep her in the
hospital and informed police and the prosecutor's office. One week after Erdaş gave birth, the prosecutor agreed
to send her home after the girl's father promised she would not be harmed.
But she was shot dead by her brother a few hours after returning home.

The entire
family was prosecuted as the honor killing was the result of a decision by
the “family council.”

Gaps in Law

Significant as they are, these reforms are not without
problems. For example, the Penal Code reform has generated some uncertainty
concerning “honor” and “custom” crimes. Instead of
using the word for “honor” (namus), the revised Penal Code
uses the term for “custom” (töre), creating confusion
as to what constitutes custom, and whether the provision includes honor crimes
in sentencing for murders in the name of “custom.”[50]
The United Nations Committee on the Elimination of Discrimination against Women
(CEDAW) has expressed concern about this ambiguity:

The use of the term “custom killing” instead of
“honor killing” in the Penal Code may result in less vigorous
prosecution of, and less severe sentences for, the perpetrators of such crimes
against women.[51]

Furthermore, a remaining provision in the Penal Code may be
used to lower prison sentences in cases where upholding
notions of family honor provided a motivation to kill: article 29 contains
reference to “provocation” or “incitement” as possible
grounds for a lower punishment for murder.[52] Advocates told
Human Rights Watch that this provision had at times been invoked to lower
sentences for murders of lesbian, gay, bisexual, and transgender people.[53]
This misuse of the law should be addressed.

Anti-Violence Programming

The legal realm is not the only sphere of progress on
violence against women in Turkey: in recent years, a number of government
agencies, NGOs, and media outlets have launched programs and campaigns to
address the topic. For example, an outreach campaign initiated by the
Directorate General on the Status of Women with the United Nations Population
Fund (UNFPA) focused public attention on violence against women by having
football players urge the public to "stop violence against women."[54]
The Turkish newspaper Hurriyet has also played an active role,
leveraging its influence to spotlight the issue and establish a hotline
offering women who face domestic violence 24-hour legal and psychological support.

The Directorate General also trains police officers, members
of the judiciary, and health workers, and works with religious officials to
garner support in combating domestic violence.[55] Their efforts
appear to be paying off. The deputy director of the Directorate General told
Human Rights Watch: “In the 17 years I have been working here, I have
seen huge changes. The police ask us for advice; we don’t need to force
it on them anymore.”[56]
But she also conceded that important problems remain: “The stereotypes
that lead to violence are still there. We need a transformation and a
zero-tolerance policy.”[57]

Proposed Revisions to the Family Law 4320

On March 7, 2011, Fatma Şahin,
a Justice and Development Party lawmaker announced a proposal to revise the Law
on the Protection of the Family. The proposal, which followed a wide
consultation process with women’s organizations in Turkey, aims to
protect against violence individuals who are:

... [s]ubjected to violence or at risk of being subjected
to violence: including women, children, spouses, those engaged to be married,
those living in close relationships, and includes provisions to protect
individuals whose engagement, marriage or relationship has for any reason
ended, and also other family members.[58]

The draft law states that a family court
judge can render the court decision for a protection order. In cases that fall
outside regular court hours, or where it would be problematic to delay the
protection order, a prosecutor could make such a decision and communicate it
verbally to police, and later in writing. A court would then approve it as soon
as possible. The draft law also provides that decisions to grant protection
orders include specific information about the alleged case; changing or ending
the protection order; alimony arrangements; and provisions that ensure that men
who violate protection orders face court-ordered detention and possible
imprisonment up to six months.

Protection orders would also include
provisions, where possible, for alimony, or else possible material support and
shelter funded by the Ministry of Interior. The draft law also specifies the
need for measures to keep secret the place where a woman is sheltered. It
provides for establishing a department located in the prosecutor’s office
to protect against violence and staffed by sufficient prosecutors, and for law
enforcement authorities (police and gendarmerie) to have such a dedicated
department.

Existing (though recently introduced)
probation and support departments based in the prosecutor’s office would
be responsible for monitoring implementation of protection orders and offering
various forms of material and psychological support to those granted protection
orders. Overall coordination and responsibility for effective implementation
would rest with the Directorate for the Status of Women, which would coordinate
a commission of representatives from the ministries of Interior, Justice, and
the Social Services and Child Protection Agency (SHÇEK).[59]

At time of writing, the draft had been
submitted to the various relevant parliamentary commissions (including the
parliamentary Justice Commission), and MP Fatma Sahin’s office informed
Human Rights Watch that the goal was to press for the law to pass before the
June 12, 2011 general election.

There have been previous attempts to press
for revision of the Law on the Protection of the Family, including a proposal
forwarded by Sebahat Tüncel, the Peace and Democracy Party Member of
Parliament for Istanbul, shortly before Şahin
submitted hers. Tüncel’s proposal contains similar provisions
to those of Şahin and is also being considered by various parliamentary
commissions.[60]

As Turkey continues to reform its legislation, both the
victim and respondent’s rights need to be taken into account. This could
include reforms that establish the possibility of issuing permanent or longer
term protection orders, in which case requiring a court hearing would provide
the respondent with due process rights and be in line with practices in other
countries.

III. Failings in Implementing the Protection Law

When I got to the prosecutor’s office, and I
started to tell my story to a secretary, there was a man sitting there who was
having tea with the prosecutor. He started shouting at me: “Why are you
here, talking about your husband! Go back to him. Go back to your house!”

—Hamiyet M., Van, June 15, 2010.

There is no doubt that the legal framework for protection
from violence has improved. However, as this chapter shows, there are serious
shortcomings in the way it is implemented.

In 2009, a large study
by academics concluded that 57 percent of women in Turkey as whole, but only 35
percent in the east, are aware of the Family Protection Law.[61]
Of those women who had heard of the law, only 7.5 percent knew someone who had
actually benefited from it.[62]

Human Rights Watch research indicates that even those women
who do know about protection orders face barriers that prevent them seeking
help and protection. Human Rights Watch research suggests that all too often police,
prosecutors, or judges to whom women might turn for help send them back to the
abusive situation, push for reconciliation, ask for medical records, or delay
the process significantly. If a judge does eventually issue a protection order,
police monitoring often falls short.

Barriers to Reporting Violence

In situations of domestic violence, family members or
husbands often control a woman to such an extent that she is physically,
psychologically, or economically incapable of leaving the situation she is in
to find help. Women also told Human Rights Watch they hesitate to seek help
because their experience, or that of acquaintances, has led them to believe
that police will turn them away.

In the predominantly Kurdish southeast, years of conflict
have contributed to a fundamental mistrust of the state and police, which
further prevents women reporting violence. Kurdish women who in some areas
quite commonly do not speak or write Turkish find it difficult to petition for
a protection order. Finally, family courts that issue these orders have limited
opening hours and lack trained and specialized staff.

Physical, Psychological, and Financial Control by
Family over Women

Aslı I. is a 21-year-old Kurdish
woman from a village close to Van. Aslı confronted violence from the
moment she married and moved in with her in-laws in 2009. All 10 people in the
household abused her in some way.[63]
When she had severe stomach pains, the family kept her captive and her
father-in-law injected something she could not identify into her arm that made
her weak and ill. The family also forced her to carry stones and wood all day
for a house it was building.

Aslı’s father-in-law hit her “all the time”
with a water pipe, a hose, and a hammer.[64] He broke
Aslı’s nose and arm, and barred her from going to a nearby hospital.
He regularly locked her up in barn where animals were kept and finally told
her, “I didn’t just get you here for my son, but also for my
pleasure.” He then raped her. Aslı told us, “He
was so dirty, so fat, and so violent. I thought that either he would kill me or
that I would kill myself.”[65]
Her family found out, went to the house several times, and eventually managed
to rescue her. She now lives with her mother and seven siblings. Her in-laws
still threaten Aslı and her family.

While enslaved and held captive by her in-laws, Aslı
had no way to seek help from police or prosecutors. Once she was free, her
father pressured her to stay silent for fear of her family’s lives. Only
when her father-in-law came to their house and burnt her arm did she go to the
police to report him. She cannot read or write and speaks little Turkish, but
she got help from a women’s group. The police told the father-in-law to
stay away from her, but did not arrest him. They advised Aslı to seek a
protection order from the prosecutor, which she did in May 2010. However, as
Aslı told us:

I went to the prosecutor, but never heard back from them,
and he [the father-in-law] keeps coming to our house. Will he kill me or one of
my brothers before I can get help?[66]

Economic dependence on abusers also stops many women and
girls from seeking help. Many women have no means of supporting themselves or
their children without relying on their abusers, and families do not always
support their daughters financially. For example, Deniz F. knew when she was
pregnant, that she would not be able to leave her abuser.[67]
She told Human Rights Watch:

There was no way I could support myself and the baby. When
I told my family that [my husband] was crazy, that he beat me and had even used
a stun gun on me, they refused to support me and said, “You have a baby,
just bury it, he’s your husband.” I had no place to go and no way
to get work. I was trapped.[68]

To address victims’ economic dependence, Law 4320
allows courts to order abusers to pay maintenance to victims. In several cases
we reviewed, maintenance was indeed ordered, but not monitored. In none of
these cases was any money actually paid.[69] Judges may also
refuse a request for maintenance based on the abuser’s financial
situation.[70]
When a woman applies for protection, she simply cannot rely on financial
support being ordered or enforced. This constitutes a barrier to applying for
protection in the first place. A lawyer working with domestic violence
survivors explained, “The main reason for not filing a complaint is not
fear, but a lack of financial means, and no hope to sustain themselves.”[71]

Even if a judge grants maintenance, garnishing an
abuser’s wages is only possible if he works for a public institution.[72]
A chief of a police station in Diyarbakır told Human Rights Watch that
officers do ask husbands to pay the woman money while the protection order is
in force, but in no case that Human Rights Watch documented were abusers forced
to pay maintenance.[73]

Mistrust of State Authorities and Skepticism about
Response

Mistrust of police is widespread in Turkey and constitutes a
major obstacle for women wishing to report abuse. Hamiyet M., a 40-year-old
woman from a small town in Van province whose husband beat her brutally for
more than two decades, told Human Rights Watch:

I went to the police several times. First two times I was
sent back. Then when I went to the hospital, the police in the hospital got
angry with me and said, “Are we supposed to deal with you all the
time?” I never trusted any policeman after that, because I told him what
would happen and he did nothing.[74]

When other women hear stories such as Hamiyet’s in
which police turn away women experiencing domestic violence they may
understandably decide not to go to the police at all. Gülşen F., from
Diyarbakır and also 40 years old with four children, told Human Rights
Watch: “[My husband] is not so violent; he just hits me when we
fight.”[75]
Later in the interview she said he rapes and beats her regularly. She
continued, “I never went to the police because I knew they would just try
to reconcile us. I know enough women who tried without any result.”[76]

In predominantly Kurdish areas, some of the mistrust toward
state authorities felt by women who experience domestic violence stems from the
decades-long conflict in the southeast and eastern provinces between the
Turkish military and the Kurdistan Workers’ Party (PKK). The fighting has
killed tens of thousands of soldiers, PKK members, and civilians. In the 1990s
human rights groups documented thousands of enforced disappearances and
unresolved killings, which state perpetrators are suspected of carrying out.[77]

Only 10 percent of women go to the police at all, and 90
percent of women who do go to the police are further violated in some way
… there are so many women who went to the police and didn’t get
protection.[78]

Similarly, the mayor of Bağlar Municipality in Diyarbakır, who is
setting up a shelter and has started a women’s center, said: “For
Kurdish women, the police is not seen as a secure place…. The political
problems reflect on social problems.”[79]

Language Barriers

Women from certain minorities, in particular Kurdish women
who do not always speak Turkish, experience language barriers when trying to
access government domestic violence services. Even in areas with large Kurdish
populations, family courts and law enforcement stations (police and
gendarmerie) do not always have qualified interpreters. The chief prosecutor in
Van showed Human Rights Watch important improvements in the way the family
court deals with family violence cases.[80] When Human Rights
Watch asked the chief prosecutor about services for Kurdish women in
particular, he was concerned about those cases and their safety, and said
secretaries sometimes informally interpret. However, he refused to provide
Kurdish language translation systematically and added: “Well, Kurdish is
not a language in any case.”[81]

Police officers in Diyarbakır told Human Rights Watch
that language differences posed no real problem. “There are officers from
the region here who speak the language, and there aren’t many women who
speak no Turkish,” one said.[82]
However, organizations and lawyers in the region directly contradicted this.
The head of Van’s Women’s Association told us that battered women
who do not speak, read, or write Turkish do indeed face problems communicating
with authorities.[83]

While women who grew up in Diyarbakır
or Van may speak Turkish, thousands of others who migrated to the cities from
outlying districts when villages were forcibly evacuated in the early 1990s do
not. In provinces such as Şırnak, Siirt, Hakkari, Mardin, Batman,
and Urfa, many adult women only speak Kurdish. In provinces such as Siirt,
Mardin, and Urfa, Arabic is also a mother-tongue for women from the significant
Arab minorities living there.

Human Rights Watch interviewed women who significantly
delayed seeking protection because they were unable to speak Turkish. Aslı
L., for example, the Kurdish woman held prisoner in her in-laws’ house,
was deterred from seeking help because of her lack of Turkish.[84]
Her mother told us in Kurdish that she too finds it impossible to get help from
authorities because of her lack of Turkish and fear of police.[85]

Limited Availability of Family Courts

Family court staff shortages, and limited working hours of
the family judges from 9 a.m. to 5 p.m., constitute barriers to reporting
violence in some areas. This can result in women waiting days for their
application to even be recorded for processing.[86]
The system varies in different family courts. In Van, a chief prosecutor said
there is a prosecutor on duty 24 hours a day.[87] However, there is
no judge on call to approve the issuing of a protection order 24 hours a day.

Zelal K. faced a delay in getting a protection order due to
family court hours. She had already been turned away from two police stations
in Istanbul after her ex-husband raped and beat her. She then went to a family
court prosecutor in 2008 at an NGO’s prompting.[88]
She said:

It took me my very last breath that day to drag myself to
another office. But I did go to the family court to see the prosecutor. It was
Friday when I got there, and the prosecutor told me, “Please come back on
Monday.”[89]

Police and Gendarmerie Response to Reports of Abuse

The police said, ‘Aren’t you ashamed to tell
me you were raped by your ex-husband? Why would I believe you?’

—Zelal K., Istanbul, June 12, 2010

Law enforcement officers often prioritize preserving family
unity, and push battered women to reconcile with abusers rather than pursuing
criminal investigations or assisting women in getting protection orders. Human
Rights Watch documented this tendency in every city visited for research.

In most cases documented, police officers or gendarmerie
sent women back to violent husbands or family, or summoned the husband to
pressure the couple to reconcile. In some cases, police sent women back to
batterers multiple times, even when they returned to report more attacks on
themselves or their children.

While important progress has been achieved in some areas,
such as improved awareness of the law among law enforcement personnel through
law enforcement trainings and public pressure, much remains to be done before
abused women can count on their complaints and safety being taken seriously.

Songül S., a 32-year-old woman with three children from
the Mediterranean region in Turkey told Human Rights Watch:

I tried and tried many times to make [the marriage] work,
but he just kept beating me and controlling me. He broke my cell phone, he cut
off all my relationships, and he kicked me in my stomach. The worst thing is
that he beat my oldest son. I managed to protect my other children.[90]

The abuse started in 1999, and continued until she managed
to get to a shelter in Adana in the south Mediterranean region, and then Ankara
in 2010. On three different occasions, most recently at the start of 2010, when
Songül went to police to complain of abuse and seek protection, she was
told to return to her husband.[91]

Fatma S., a divorced mother of three in her thirties from
Antalya, fled to Ankara at the beginning of 2010 and was staying in a
municipality shelter when Human Rights Watch met her.[92]
Her ex-husband beat her and their young children every day for eight years. She
showed Human Rights Watch a scar on her forehead from when he had hit her with
a sharp stick.[93]
She said:

I went to the police in Antalya begging for help and showed
them a hospital report from this incident, but they called my husband and
believed his story. He told them I “fell down the stairs” and they
told me to go back to my husband.[94]

Masha M., originally from Ukraine, was dismissed altogether
because of her nationality and residence status. She described how her Turkish
husband sexually and physically abused her, and showed us scars on her face, a
cast on her foot, and broken ribs.[95]
She explained how when she was looking for protection at the beginning of 2010,
the police, a prosecutor, as well as a judge all told her, “Go back to
your country; why should we deal with you?”[96]
She had no papers (they were taken by the husband) and was under constant and
proven threat from her husband.

Municipal social services officers in Diyarbakır, who
work with women to help them get protection orders, said that police often
discourage women from getting orders and push for “family unity.”
One told Human Rights Watch, “We have been told by the police: ‘He’s
her husband, he can beat her,’ and ‘This should be resolved within
the family.’”[97]

Members of the gendarmerie, the army unit that polices rural
areas, have also pushed battered women to reconcile with abusers rather than
helping them to obtain protection orders, or have simply ignored complaints. In
Trabzon, on the Black Sea coast, a bar association member who works on domestic
violence cases said, “[The gendarmerie officers] are young, untrained in
issues like this, and inexperienced. We hear things like ‘It’s your
husband, what do you expect?’”[98]

Selma E. has two boys and comes from a village in Aksaray in
Central Anatolia. She wed 17 years ago, and was pummeled by her husband from
the first week of marriage through nearly two decades of marriage.[99]
She is now blind in one eye, her skull is fractured in two places, and her back
is badly injured. She told Human Rights Watch about her efforts to get help,
most recently in 2009:

I went to the gendarmerie several times, but they
didn’t do anything, they just sat there, listened, and sent me away
again…. Last year my neighbors told the mayor’s wife about my
situation, and she got the gendarmerie to take me to Ankara.[100]

NGOs who accompany women to the police and gendarmerie also
told us about the responses they heard. In Diyarbakır, two groups told
Human Rights Watch that officers treat women rudely, especially if they report
abuse more than once, and often ask why they have returned.[101]

With sufficient monitoring and training, police and
gendarmerie responses to family violence have improved. For example, in a
meeting with seven police officers, including two female officers, and the
director of security at a police station in Diyarbakır, Human Rights Watch
observed the difference that training and a high-level focus on family violence
can make, at least on the surface. They showed us brochures they hand out to
domestic violence survivors explaining their rights. The officers clearly
understood protection order procedures.[102] They also had a
private room at the station for interviewing family violence victims, and
explained how they fill out risk assessment forms to help victims understand
the level of threat they face. In theory these measures are important and
laudable.

However, caution is needed as Human Rights Watch documented
conflicting messages from women suffering domestic violence in Diyarbakır
recently who did not receive the police response to which they are entitled.

Role of Judges and Prosecutors

Usually, a woman who is experiencing violence will go first
to the police, who should then refer her to the family court to apply for a
protection order. She can also apply to the prosecutor’s office for a
family court to issue a protection order. The 2007 amendment to Law 4320 made
it possible for a prosecutor to start a protection order process on his or her
own initiative as well.[103]
The prosecutor forwards the request to a family judge, who issues or refuses
the order. The decision is passed back to the prosecutor, who is responsible
for monitoring its implementation through the police.[104]

This section shows the problems that women face at this
stage of the procedure. For example, the decision-making process can be too
slow for an emergency measure; prosecutors are sometimes reluctant to forward a
request to a judge or start the process on their own accord; and judges may
take too long to decide whether to grant an order. Another common problem is
that family judges may demand medical or other forms of evidence, which are not
required for a protection order.

Reluctance and Slow Decisions by Family Courts

Protection orders are meant to be emergency measures adopted
when there is imminent risk of family violence. Speed is essential, and delays
by prosecutors and judges can defeat their purpose. Human Rights Watch
documented cases where the process took anywhere from two days up to six months
due to inaction and even reluctance on the part of prosecutors and judges to
interfere with “family matters.”

One prosecutor told us that he is sometimes reluctant to get
involved in domestic violence cases because,“…[o]kay, she might
have been beaten before, but now they are together again, and if we get
involved the family might be broken up and he might get more violent. If we
know the man is an addict we might do something.”[105]

A representative of the Women’s Rights Commission at
the Diyarbakır Bar Association told Human Rights Watch that while the body
sees great progress in how police and prosecutors are treating women, it still
sees prosecutors delaying orders by telling women to go back to police to make
another statement, or to reconcile with abusers. “The problem is with the
prosecutors,” she said. “All this can take far too long.”[106]

Human Rights Watch also obtained several case files
revealing significant delays. One woman originally applied for a protection
order on February 10, 2005, which she received on March 31, 2005.[107]
Another woman applied for a protection order on July 7, 2008, and received it
on July 28, 2008.[108]
Other case files showed that some applications were transferred to other family
courts on grounds of jurisdiction, which delayed the process.[109]

Aslı I., the 21-year-old Kurdish women from Van who was
kept as a slave and abused by her family-in-law sought a protection order from
a prosecutor in Van 40 days before we interviewed her, and had not yet received
an answer. Meanwhile, her family-in-law continued to threaten her.[110]

Improperly Requiring Evidence

Decisions to grant a protection order need to be able to be
reached quickly if they are to be effective and achieve the outcome for which
they are designed: providing urgent protection to individuals at imminent
risk. Access to the remedy is delayed when only documentary or physical
evidence will suffice to substantiate the necessity of a protection order.

The emergency step of issuing a temporary protection order
does not involve reaching the determinations that are required in a criminal
trial nor even a proceeding on a permanent civil order or injunction. The
consequences for individuals subject to protection orders—such as refraining
from violence, temporary removal from the home, and in some cases temporary
maintenance payments— is less onerous than the deprivation of liberty
that can result from a criminal proceeding. Therefore the applicable due
process protections may differ from those in a criminal trial.

The UN has gathered best practices throughout the world and
issued a handbook for legislation on violence against women. On the issue of
evidence for protection orders, it says:

Legislation should state:

That live testimony or a sworn statement or affidavit of
the complainant/survivor is sufficient evidence for the issuance of a
protection order;

No independent evidence—medical, police or
otherwise—should be required for the issuance of a protection order
following live testimony or a sworn statement or affidavit of the
complainant/survivor.[111]

In line with this standard, Turkey’s Family protection
law does not require evidence besides the petition of the claimant. A judge may
grant an order when a person is subject to abuse, and notification is made by
either the victim or the public prosecutor, after taking into consideration the
specific circumstances of the case.[112]
The explanatory statement with Law 4320 states:

If the Magistrate's Court considers that there is a possibility
of the victim again being subject to abuse then it can pass an order
immediately after the application without need for witnesses or hearing from
the other side. Those who have suffered abuse are not responsible for proving
to the court the possibility of being subjected to abuse.[113]

However, Human Rights Watch documented several cases where
judges or prosecutors handled protection order processes more as if they were
criminal proceedings, most often by demanding medical evidence or notifying an
allegedly abusive husband that he could testify before they issued an emergency
protection order.

For example, Human Rights Watch obtained a petition from a
woman to a family court judge in Istanbul in which she asked for protection on
December 15, 2008. She wrote:

My daughter has told me that her father has sexually
harassed her since she was four. This is why we don’t want the father in
our house…. When she was five or six, her father used to lie next to her
naked, would take off her underwear and satisfy himself. This continued. Now
the father demands to be let back into the home, and that’s why I need a
protection decision…. He hurt me and my children, he cut my lip by
beating me and I have a medical report at the police station.[114]

On December 19, the judge scribbled on the top of this
petition: “Need further documents and evidence, hearing will be
scheduled.”[115]
A hearing took place on February 3, 2009, in which the mother and daughter
testified in front of the accused and the daughter had to elaborately describe
the abuse.[116]
The mother’s lawyer told Human Rights Watch:

I am convinced the judge did not even read the petition,
and dismissed it out of hand. During the hearing he seemed shocked and
eventually he granted her a protection order. But this is after a delay of
nearly two months, and unnecessary trauma for the family.[117]

Several other women, lawyers, and other practitioners,
including lawyers in the Diyarbakır Bar Association’s Women’s
Rights Commission, told Human Rights Watch that prosecutors and judges
sometimes ask for evidence and witnesses before granting a protection order.[118]
UNFPA similarly told Human Rights Watch:

The key problem seems to be the misunderstanding by judges
of the concept of a protection order as an emergency measure. They treat it
like a criminal case, which is why they regularly ask for medical evidence.
This is an issue that should be dealt with in law school.[119]

Monitoring Compliance with Protection Orders

Protection orders are only helpful if they are enforced,
which requires diligence and action on the part of law enforcement officials.
Once issued, police or the gendarmerie are responsible for informing the
respondent of the issued order, and obligated to conduct regular checks of the
home.[120]
If it appears the abuser is violating the order, law enforcement officers must
investigate and refer the matter to prosecutors to initiate criminal
proceedings.[121]
The spouse or family member who has not abided by the protection order can be
sent to prison for three to six months.[122]

The government issued a regulation in March 2008 on
implementation of Law 4320, stipulating that law enforcement officers should
check up on recipients of protection orders once a week.[123]These
proactive checks are vital for victim safety. Violence can escalate after
abusers learn of protection orders and may be determined to defy the orders,
making this a particularly risky time. When Hamiyet M.’s husband received
a protection order, he tore it up, and the violence increased in intensity and
frequency.[124]
She said, “After the police, he started to threaten my daughter and he
beat me up more intensely, with more passion and anger. It was extremely
dangerous.”[125]

The Diyarbakır director of security told Human Rights
Watch that in his region, police officers do visit homes of protection order
recipients.[126]
However, we documented cases in Diyarbakır and throughout the country in
which women successfully petitioned for protection orders only to have their
effectiveness undermined when police did not monitor enforcement. Alev A., a
45-year-old woman from Diyarbakır who suffered more than 26 years of
abuse, eventually got a protection order against her husband in 2008. When her
husband saw the paper, he burned it, and told her, “Only by dying can you
leave me.”[127]
The police never checked on her, she could not get out, and the violence
intensified and was continuing at the time she was interviewed.

Fatma Babatli

In a
much-publicized case of violence continuing after a protection order was
issued, Fatma Babatli, a mother of seven in Diyarbakır, was murdered in
November 2008. Two months before her death Fatma Bababtli had made a
complaint to the Public Prosecution office in Diyarbakir because her husband
was beating her. The Diyarbakir Family Court ordered her husband to not
approach their house for 6 months. However he continued to contact
Fatma Babatli, he attacked her several times, and destroyed the house. The police
never checked on her at any stage after the order had been issued. After she
complained, police arrested him for violating the protection order, but he
was released the next day. He killed her a short period later.

In Babatli’s case, the police neglected to check on
whether an order was being followed. But Human Rights Watch also documented
some cases in which police refused to respond even when women reported
violations of the protection orders. For example in Izmir, Zeynep B. had a
protection order against her husband, who regularly beat and psychologically
abused her. At the end of 2009, while the order was in force, her husband
barged into her house, cut off her electricity, and threatened her with a
knife. She fled and he chased her, but she managed to get to the police. They
told her, “Go home, we will deal with it.” On her way home she was
stabbed six times by the husband. She barely survived.[128]

If, through proactive checks or reports from the abuser, the
police or gendarmerie learn that an abuser is violating a protection order,
they are required to investigate and refer the matter to a prosecutor quickly.
The law authorizes the prosecutor to then file suit against the accused in a
magistrate’s court. The spouse who has violated the order can be
sentenced to prison for three to six months.[129] In practice, it
is rare that police initiate, and a prosecutor takes forward, such a procedure
against the violator of a protection order. As one chief prosecutor told Human
Rights Watch:

To my knowledge there have been 17 cases of such
proceedings. It is difficult, because after an order is issued, couples often
come back together or there are mediators who bring them back together. Usually
we just give the husband a warning.[130]

Structural Problems

Many problems described in previous sections result from
three structural problems: first, lack of specialized staff and units at police
stations, even in larger cities and major regional centers; second, lack of
adequate, ongoing, and thorough training of law enforcement officers,
prosecutors, and judges who deal with domestic violence cases; and third, lack
of privacy in police stations or family courts when reporting family violence.

Inadequate Staffing and Lack of Specialized Units

Complex family violence cases are best handled by officials
with expertise in this area. United Nations Population Fund (UNFPA) recommends
that separate family violence units be established within police stations and
family courts, which employ specialized social workers and prosecutors,
following the model of Turkey’s child units.[131] This
might not be feasible in every police station in the country, but could be
introduced initially in larger cities or regional centers. Dedicated units
would make training more efficient, as fewer people need to be trained and
continuity is more likely. It would also facilitate data collection and
monitoring of Law 4320’s implementation.

Unfortunately, even though family violence is one of the
most pervasive crimes in Turkey, there is a shortage of expert staff. In many
police stations, there is no dedicated officer or unit to deal with family
violence. Nor is there a specialized prosecutor in every region. The ranks of
officials with this kind of expertise are growing as the government and UNFPA continue
their trainings, but there is a great need for more specialized staff.

Advocates and officials throughout the country emphasized
that having dedicated police units and specialists in other sectors deal with
domestic violence and protection orders would be a tremendous help.

Limited Training of Law enforcement Officials

In addition to having highly specialized officials handle
domestic violence cases, all law enforcement officials need some basic training
to equip them to handle these cases. Family violence is so complex and
dangerous to both victims and the law enforcement officers who intervene, that
training is essential. There is currently only one lesson on violence against
women in the regular curriculum of police schools and academies—in the
human rights section.[132]

The United Nations Population Fund, in cooperation with the
Directorate General on the Status of Women, has trained 270 high ranking
officials, who in turn trained 40,000 police officers, on how to handle
domestic violence cases. The trainings conducted in 2009 and 2010 focused on
not sending the woman back to her abuser; how to communicate with a domestic
violence survivor; how to use a registry (an intranet system in most areas of
the country); and how to complete a risk analysis form. Trainers selected 20
officers to undertake more extensive eight-month training.

But even those who have organized the trainings told Human
Rights Watch that much more is needed. A UNFPA representative said,
“[Trainings] need to continue and be institutionalized. It should be part
of the police college, both in the two year college (high school) and in the
course for high ranking police (four years).”[133]

An NGO in Diyarbakır told us, “They say they
trained 40,000 police officers, which is a great number, but we don’t see
[the trainings] applied here. There is a clear need for further
training.”[134]

Particular training needed is to ensure that law enforcement
officials understand the various manifestation of family violence. The 2008
regulation on the family protection law refers to physical, sexual,
psychological, verbal, and economic violence.[135]
However, lawyers told Human Rights Watch that in some areas it is futile to
pursue protection from anything other than physical violence since authorities
have not responded to charges of other forms of abuse, such as psychological
and economic violence, or even marital rape. For example, in Trabzon, a lawyer
told Human Rights Watch that even though marital rape is criminalized,[136]
“basic violence is really all you can talk about here—marital rape
doesn't exist as far as the courts are concerned. One woman asked us ‘I
don't want to have sex with my husband, what can I do?’ I couldn't give
her an answer.”[137]

The importance of the institutionalization of ongoing family
violence training was illustrated by a social worker, exasperated by the
ignorance of her colleagues in the police, judicial system, and social services
of the family protection system:

I always have to tell people how to do their jobs, how the
procedures work. I do a lot of struggling, so I cannot put my skills as a
social worker to good use because I spend so much time telling others how the
system should work.[138]

Training the gendarmerie to adequately handle domestic
violence cases poses particular problems, but is equally important. The
gendarmerie generally consists of young men doing short-term military service.[139]
There is high turnover, and less motivation to invest in their training. It is
crucial that they, like police, are trained to help women threatened by
violence in the home, or that only professional gendarmerie with appropriate
training handle cases.

Problems with Facilities

Abuse survivors who summon the courage to report cases need
private spaces within police stations or family courts to describe what they
have endured. Family violence is so stigmatized and traumatic that failing to
provide a private space can deter reporting.

Unfortunately, women and advocates described just the
opposite in some locations. In one station, the desk where domestic violence
statements are taken is in a hallway; in another, statements are taken in a
busy, open office also used for other purposes.

For example, when Hamiyet M. went to family court in Van in
2009 to report 24 years of abuse she was sent to a secretary in a hallway. She
explained: “I was ashamed to talk, but I did it anyway. I have so many
children, I need to take care of them.”[140]

IV. Inadequate Shelters

I am scared to death [to leave the shelter]. My husband
just didn’t accept the protection order, instead he tried to get me
again. When will this end? When he kills me or my children?

—Fatma S., Ankara, November 10, 2010

Shelters for family violence survivors, sometimes called
guest houses, differ in size, set-up, and quality, and are run by different
groups, including central government social services agency (SHÇEK guest
houses), municipalities, governorships, and NGOs. All forms of shelters are
covered by a 2001 regulation specifying who can open a shelter, services that should
be provided, basic building requirements, and shelter rules.[141]
This report shows the need for more shelters, broader eligibility rules, and
adequate regulation of shelter quality.

Number of Shelters

The number of shelters that must be available in Turkey is governed
by Municipality Law No. 5393, which states, “The Greater City
Municipalities and the municipalities having population more than 50,000 shall
open houses for women and children welfare.”[142]

Estimates vary as to the actual numbers of shelters, but by
all accounts there are far less than the number required under this law.
According to NGOs, there are 52 shelters;[143] according to the
Directorate General on the Status of Women, there are 37 SHÇEK shelters,
and 25 shelters run by NGOs, governorships, and local authorities, totaling 62
shelters. However, there are at least 166 cities with over 50,000 inhabitants,
so more than 100 cities certainly do not comply with the law. Besides that,
there are many more municipalities within those cities with over 50,000
inhabitants, which do not run shelters.[144] The shelters
needed to fulfill the requirement runs into the hundreds.

More shelters are sorely needed to meet the demand. As one
shelter director in Ankara said, “Picking which woman we allow in is the
hardest. There are many more cases than we can take, so we have to say
‘no’ to many women. We only pick the very worst cases.”[145]

Mor Çati, a leading women’s rights NGO, faces
the same dilemma for its shelter in Istanbul, especially after it had to close
a second shelter because it lost government funding. It says needs are far
greater than it can serve.[146]

Shelter Conditions

Even when shelters are available, women report that their
terms of conditions, security, and quality of services are sometimes
inadequate.

Poor security at shelters is sometimes due to staff
mismanagement, and sometimes police or school registries revealing shelter
locations. For example, police in a city in the southeast [exact location
withheld] told Selvi T.’s husband the location of the shelter where she
had sought safety with her children following years of abuse.[147]
He came after her. Shelter staff let him in, and pleaded with Selvi to speak to
him. In other instances, such as a case we learned of in Ankara in 2010,
abusers were able to locate children and mothers in shelters because school
records usually show the shelter address.[148]

Shelter staff members describe the rules, including curfews,
restrictions on movement, and limits on cell phone use as necessary considering
the grave threats these women face. A shelter worker in Diyarbakır said,
“This is not a hotel. We need to ensure the women’s security.
It’s not about tracing the women; it’s to ensure they do not give
away the address somehow.”[149]

These are valid concerns, but Human Rights Watch has heard
anecdotal evidence of these rules being taken too far in shelters in
Diyarbakır, Adana, and Nevşehir.[150]Some
shelter rules are quite stringent, causing one woman to describe her shelter as
“a prison.”[151]
Representatives of another woman who sought shelter in Diyarbakır said she
reported, “They treated us like soldiers, with a lot of discipline, lack
of food, lack of freedom.”[152]
Songül S., a 32-year-old woman with three children, told Human Rights
Watch about one shelter:

[T]he first shelter I stayed in was in Adana, and it was an
awful place. Just the manager was fine, everyone else was terrible. You
couldn’t move freely, you couldn’t touch anything, it was difficult
to live there.[153]

Children up to 12 can usually stay with their mother in
shelters. The child can be taken away from the mother if she has to stay in the
shelter for a long time, and placed into a designated ‘hostel.’[154]
Lawyers also told Human Rights Watch that there are frequent fights among
residents in a Diyarbakır shelter after staff leave at night.[155]

Exclusion of Certain Women

Certain categories of women may be excluded from shelters
altogether, some pursuant to the government’s shelter regulation, and
others according to common practice. The regulation stipulates that women with
an infectious disease, psychological problems, and women with drug or alcohol
addictions are not allowed in the shelters.[156] Also typically
excluded are women who are trafficked (there are designated shelters for this
group) and sex workers.[157]
An official at the Directorate General on the Status of Women told Human Rights
Watch that both trafficked women and sex workers should by law be eligible for
social services shelters, but advocates said in practice they could not access
shelters.[158]

In addition, undocumented women, including asylum seekers,
are barred from state-run shelters. Local authorities said they are not allowed
to use government funding to assist women who do not have legal status in
Turkey.[159]
The head of a shelter in Ankara told Human Rights Watch:

[Migrant women’s] cases are different. These are
usually prostitutes, so they would not go to shelters.[160]

Women with disabilities may face increased risk of violence,
and face additional barriers to receiving protection and shelter.[161]
The Convention on the Rights of Persons with Disabilities requires states to
take persons with disabilities into account in their policies and measures to
protect women.[162]
None of the municipalities where we conducted research had shelters (state or
non-state) that could accommodate women with physical disabilities, and
state-run shelters did not accept women with mental disabilities. In Izmir, the
head of the municipal women’s center said they have no services for women
with physical disabilities,[163]
as did representatives of social services shelters in Trabzon,[164]
Diyarbakır,[165]
and Van.[166]
In Istanbul, even the NGO Mor Çati said it could not accommodate
disabled women.[167]

Transitioning out of Shelters

As abuse survivors leave shelters, many need transitional
assistance to find long-term housing and support their families. Public
assistance is not always available, and the level of assistance for survivors
leaving shelters varies widely.

In Ankara, Fatma S. told Human Rights Watch why support
after leaving a shelter is so important. In June 2010, she was still under
severe threat from her ex-husband, who viciously abused her and abducted her
children, even though she now has a protection order.[168]
Fatma told us: “He was very sick in his head. He said ‘I want to
kill you, but the children cannot live without you, so I will have to kill the
children as well.’”[169]
He has never been arrested, so she moved to a shelter in Ankara with her
children. The shelter allows only short-term stays, and when we interviewed her
she was terrified to leave.[170]
Shelter staff acknowledged the problem:

Shelters are only for six months, so what happens after
that? Women need help with finding work, such as cleaning, cooking, in
hospitals, or in daycare.[171]

Some government-run shelters do give women cash as they
leave shelters to help with the transition. For example, in Diyarbakır,
women with children who leave the governorship shelter can receive 260 TL
(approximately US$160) per child for up to two children.[172]
However, not all women who leave shelters have that help, as Selvi T.’s
case shows. She had no state support, and even though an NGO is giving her some
help, she is barely surviving.[173]

NGO shelters try to connect women with public assistance,
but are generally not in a position to offer on-going support as women
transition out of shelters. For example, Mor Çati, which runs a shelter
in Istanbul, has no capacity to systematically support the women it has hosted
in its shelter as they transition out.

V. Turkey’s International and Regional Legal
Obligations

The beatings, rapes, and other abuse suffered by women and
girls in Turkey that this report documents not only violate Turkish, but also
international and regional law. Turkey has ratified many core human rights
treaties that require it to take action to eliminate these abuses. In fact, the
Turkish constitution gives international human rights commitments preeminence
in its legal system by stating: “In case of contradictions between the
provisions of duly ratified international agreements on fundamental rights and
freedoms and the provisions of domestic law, the former shall prevail.”[174]

International Standards

The Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW), to which Turkey became a party in 1985, sets out a range
of state obligations for eliminating discrimination, including by private
actors, and authoritative interpretations of this treaty define violence
against women as a form of discrimination.[175]

CEDAW requires states to take “all appropriate
measures, including legislation, to modify or abolish existing laws,
regulations, customs and practices which constitute discrimination against
women.”[176]
It also acknowledges social and cultural norms as sources of many women’s
rights abuses. Article 5(a) of CEDAW obliges states to: “[M]odify the
social and cultural patterns of conduct of men and women, with a view to
achieving the elimination of prejudices and customary and all other practices
which are based on the idea of the inferiority or the superiority of either of
the sexes or on stereotyped roles for men and women.”[177]

CEDAW and other human rights treaties require state
accountability for abuses by private actors, and require states to show due
diligence in preventing and responding to human rights violations. In General
Recommendation 19, the CEDAW Committee emphasized: “States may also be
responsible for private acts if they fail to act with due diligence to prevent
violations of rights or to investigate and punish acts of violence.”[178]A state’s consistent failure to do so when women are impacted in
far greater proportions by the type of violence amounts to unequal and
discriminatory treatment, and constitutes a violation of the state’s
obligation to guarantee women equal protection of the law.

The CEDAW Committee, the UN expert body that monitors
implementation of CEDAW, hasidentified key steps necessary to
combat violence against women, among them: effective legal measures, including
penal sanctions, civil remedies, and compensatory provisions; preventive
measures, including public information and education programs to change
attitudes about the roles and status of men and women; and protective measures,
including shelters, counseling, rehabilitation, and support services.[179]

Similarly, the UN General Assembly has urged governments to
take specific law enforcement measures to combat domestic violence through its
Resolution on Crime Prevention and Criminal Justice Measures to Eliminate
Violence against Women. The resolution, among other things, urges governments
to: “ensure that the applicable provisions of law, codes, and procedures
related to violence against women are consistently enforced…;”
“develop investigative techniques that do not degrade women subjected to
violence and minimize intrusion…;” “ensure that police
procedures, including decisions on the arrest, detention and terms of any form
of release of the perpetrator, take into account the need for the safety of the
victim … and that these procedures also prevent further acts of
violence;” and “empower the police to respond promptly to incidents
of violence against women.”[180]

The UN special rapporteur on violence against women has
clarified that governments are obligated to combat domestic violence far beyond
that perpetrated by formally married spouses. She explained that women in
intimate partnerships of various kinds and women working within households
should be entitled to protections against, and have remedies for, domestic
violence, including:

[W]ives, live-in partners, former wives or partners,
girl-friends (including girl-friends not living in the same house), female
relatives (including but not restricted to sisters, daughters, mothers) and
female household workers.[181]

Violence prevents women from enjoying a host of other
rights. These rights include the right not to be subject to cruel, inhuman, or
degrading treatment or punishment;[182]
security of person;[183]
and in extreme cases, the right to life.[184] The CEDAW Committee
has also noted that “gender-based violence is a form of discrimination
that seriously inhibits women’s ability to enjoy rights and freedoms on
the basis of equality with men,” including the right to the highest
attainable standard of physical and mental health.[185]

Human rights protections against violence also apply to
persons under 18 years old. The Convention on the Rights of the Child (CRC)
states that children must be protected from “all forms of physical or
mental violence, injury or abuse, neglect or negligent treatment, maltreatment
or exploitation including sexual abuse,” and ensure that victims of such
acts receive legal and psycho-social redress.[186]The Committee on the Rights of the Child clarified that exposure to
domestic violence is a form of psychological violence for the child.[187]

As the findings of this report demonstrate, Turkey has taken
critical legislative steps, but is failing to take all necessary measures to
safeguard the rights of women and girls from violations by third parties. This
legislative progress is undermined, and women’s and girls’ lives
endangered, by the failure to effectively address the barriers that deter women
and girls from reporting abuse and accessing protection; to better prevent
abuse in the first place; and to change discriminatory attitudes. Many Turkish
law enforcement and judicial officials also lack the expertise, and often the
will, to deal with cases of violence against women and girls in a manner that
is effective and sensitive to the needs and human rights of victims.

In its last two reports on Turkey, the CEDAW committee made
specific requests for Turkey to focus on implementing the Law on the Protection
of the Family. In 2010, the committee concluded:

The Committee calls on the State party to evaluate and
strengthen Law No. 4320 in order to enact comprehensive legislation on all
forms of violence against women, including domestic violence, and to ensure
that in such legislation all forms of violence against women are prohibited,
that women and girls who are victims of violence have access to immediate means
of redress and protection, including protection orders, and that perpetrators
are prosecuted and punished.[188]

The former UN special rapporteur on violence against women
wrote after her country visit to Turkey in 2006:

Lawyers and prosecutors should use the Law on the
Protection of the Family in all appropriate circumstances and seek protective
orders for women at risk. Courts should diligently enforce protective orders
granted and not hesitate to apply sanctions in cases of infractions.[189]

Regional Standards

Since 1949, Turkey has been a member state of the Council of
Europe. It ratified the European Convention on Human Rights (ECHR) in 1954, and
since 1987 individuals have been able to apply to the European Court of Human
Rights for a remedy if they allege that their rights under the ECHR have been
violated.[190]

In 2009, the European Court of Human Rights gave its
judgment in one such case, Opuz v. Turkey, which directly addressed the
failure of the Turkish state to take reasonable measures to prevent domestic
violence perpetrated against the applicant, Nahide Opuz, and the murder of her
mother.[191]

Nahide Opuz had suffered years of brutal domestic violence
at the hands of her husband, including stabbings, beatings, and death threats.
For four years from 1995 onwards, the applicant and her mother requested that
the police and prosecutor extend them protection, claiming they faced immediate
threat of death. After one complaint, authorities questioned and then released
the husband. Despite numerous complaints, the police and prosecuting
authorities did not adequately protect the women: Opuz’s husband
eventually murdered her mother in 2002.

The European Court of Human Rights held that Turkey had
failed to fulfill its obligations to protect the right to life of
Nahide’s mother (under article2 of the ECHR) and that it was in breach of
the right not to be subject to torture or cruel, inhuman, or degrading
treatment (article 3 of the ECHR) for its failure to protect the applicant
against ill-treatment perpetrated by her former husband. It also held that
Turkey was in violation of the right to non-discrimination (article 14 of the
ECHR), confirming that domestic violence is a form of discrimination against women.

This judgment constitutes the first time the court has
elaborated the exact nature of state obligations under the ECHR with respect to
violence in the family and the first time it has explicitly confirmed that
gender-based violence is a form of discrimination under the ECHR. Relying
heavily on international and comparative law, the court emphasized that
domestic violence is not a private or family matter, but an issue of public
interest that demands effective state action.

Article 2 of the ECHR, which Turkey was found to have
violated, provides: “Everyone's right to life shall be protected by law.
No one shall be deprived of his life intentionally save in the execution of a
sentence of a court following his conviction of a crime for which this penalty
is provided by law.” The court re-emphasized that this requires that the
state not only refrain from intentional and unlawful taking of life, but also
take appropriate steps to safeguard the lives of those within its jurisdiction.[192]
It also implies that authorities are positively obligated to take preventive
operational measures to protect an individual whose life is at risk from the
criminal acts of another individual.[193]

The court also elaborated on what the test should be to
assess whether there will be a violation of article 2 in the case of a private
perpetrator:

For a positive obligation to arise, it must be established
that the authorities knew or ought to have known at the time of the existence
of a real and immediate risk to the life of an identified individual from the
criminal acts of a third party and that they failed to take measures within the
scope of their powers which, judged reasonably, might have been expected to
avoid that risk.[194]

Article 3 of the ECHR reads: “No one shall be
subjected to torture or to inhuman or degrading treatment or punishment.”
States are obliged to take measures designed to ensure that individuals within
their jurisdiction are not subjected to torture or inhuman or degrading
treatment or punishment, including ill treatment administered by private
individuals.[195]

Article 14 of the convention provides:

The enjoyment of the rights and freedoms set forth in [the]
Convention shall be secured without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or other
status.[196]

Similarly to the CEDAW committee, the European Court of
Human Rights said in Opuz that a state's failure to protect women
against domestic violence breaches their right to non-discrimination under
article 14 of the convention, and that this failure does not need to be
intentional.[197]

New Council of Europe Convention on Domestic
Violence

At the time of finalizing this report (April 2011), the
Council of Europe is in the process of adopting a new region-wide draft
convention on preventing and combating violence against women and domestic
violence.[198]
Upon entry into force, this will be a binding legal instrument for any of the
47 Council of Europe member states that ratify it. The convention will apply to
all forms of violence against women in and outside conflict, and contains
detailed provisions on the prevention, protection, and prosecution of domestic
violence.

The convention lists a set of requirements regarding
protection orders. Such orders must be: “Available for immediate
protection and without undue financial or administrative burdens placed on the
victim; Issued for a specified period or until modified or discharged; Where
necessary, issued on an ex parte basis which has immediate effect;
Available irrespective of, or in addition to, other legal proceedings; Allowed
to be introduced in subsequent legal proceedings.”[199]
The orders must be available to victims without lengthy proceedings, and
“effective, proportionate and dissuasive” sanctions for any breach
of such orders should be set.[200]
Family Protection Law 4320 is in accordance with this draft text, but the
practical implementation that Human Rights Watch has documented is not.

On shelters, the convention currently states that
“parties shall take the necessary legislative or other measures to
provide for the setting up of appropriate, easily accessible shelters in
sufficient numbers to provide safe accommodation for and to reach out
pro-actively to victims, especially women and their children.”[201]
The explanatory memorandum recommends accommodation in specialized
women’s shelters, available in every region, with one family place per
10,000 head of population, but based on the needs of the population.[202]
Turkey’s domestic requirement of one shelter per municipality with 50,000
or more residents would be in line with this recommendation. Unfortunately,
Turkey is currently many shelters short of this requirement.

Recommendations

To the Grand National Assembly of Turkey

Adopt draft law 439, currently in
parliament, which calls for reforms to Turkey’s response to family
violence, including a widening of the scope of the law and better coordination
of efforts to combat domestic violence.

Explicitly broaden the scope of Law 4320 to
include unmarried women, divorced women, and women in religious marriages.

Ensure that meaningful and appropriate
funding is allocated to combat all forms of family violence in the annual
national budget.

To the Ministry of the Interior

Provide regular and up-to-date trainings to
law enforcement officers on the requirements of Law 4320 and its implementing
regulation and protocols to ensure that these authorities:

act swiftly to notify the accused spouse or
family member when a protection order has been issued;

monitor protection orders by checking the
recipient’s house on a weekly basis; and

in the event of protection orders not being
observed, conduct investigations and transfer information to the prosecutor
within the shortest possible time, without the need for the victim to submit a
written application.

Include training on domestic violence and
Law 4320 in the curriculum of both the two-year police college and four-year
police academy.

In larger cities or regional centers, and
wherever else feasible, establish dedicated units in police stations that are
specialized in family violence claims to receive and handle complaints and to
monitor compliance with protection orders.

Enable individuals to open a complaint
procedure against individual officers who violate their rights to increase
accountability of officers who fail to uphold the law.

Collect and make publicly available detailed
information on the overall implementation of Law 4320. This should at least
consist of:

the number of domestic violence survivors
reporting to the police or the prosecutor or that go directly to family courts;

the number of risk assessment forms filled
in;

the number of referrals to the family court
for a protection order;

the number of referrals to social services;

the number of protection orders sent by the
prosecutor to the police for monitoring; and

whether there were weekly checks on women
with protection orders.

To the Ministry of Justice

Ensure that family courts can be open in
evenings and on weekends.

Ensure the privacy of the complainant when a
clerk or prosecutor takes a petition for a protection order.

Ensure there are interpretation services at,
or available to, family courts for the most frequently used languages besides
Turkish, including Kurdish and Arabic.

Provide regular training for prosecutors and
judges regarding their responsibilities under Law 4320 and its implementing
regulation, including trainings that clarify that:

protection orders should be granted based on
risk of physical, sexual, psychological, verbal, and economic violence, not
just physical abuse;

protection orders are emergency measures and
speed of the decision is crucial;

no medical evidence is required for a
protection order to be issued;

prosecutors are able to initiate a
protection order process at their own initiative;

prosecutors are ultimately responsible for
monitoring enforcement of the order through the police; and

prosecutors are responsible for initiating
criminal cases with the magistrates court against violators of protection
orders, including those who fail to pay maintenance.

Include Law 4320 in the standard curriculum
of the advanced education program for judges and prosecutors, and encourage law
schools to include this topic in their curriculums.

Gather and make publicly available detailed
information on the overall implementation of Law 4320, including but not
limited to:

the number of requests for protection
orders;

refusal and issuance rates of protection
orders; and

the number of criminal cases initiated based
on noncompliance with protection orders and results of such cases;

Separate from protection orders, ensure that
prosecutors and judicial officials carry out their duty to pursue criminal
prosecution of domestic violence cases.

To the Prime Ministry Social Services and Child
Protection Agency

Make available and accessible assistance for
women transitioning from shelters to housing. Such assistance should address
housing and welfare needs and include basic allowances.

Allow access to shelters regardless of
nationality and residence status.

Ensure sufficient access to safe housing for
domestic violence survivors with physical and psychological disabilities, for
pregnant women, and other groups of women who currently face barriers entering
shelters.

Improve coordination with police and family
courts by providing focal points in each municipality who will be notified as
soon as a domestic violence survivor asks for protection.

Provide training for staff on the physical
and psychological consequences of domestic violence and the needs of survivors
beyond immediate physical protection.

To the Greater City Municipalities and
Municipalities with 50,000 or More Residents

At a minimum, comply with the requirements
in Municipality Law 5393 by opening the required number of shelters for women
and children.

To the Directorate General on the Status of Women:

Compile the relevant statistics from the
institutions listed above on a regular basis in line with Law 5251 on the
functions of the Directorate General on the Status of women.

Continue and increase public awareness
raising campaigns on Law 4320 and how women can get protection orders.

To the European Commission

Include a detailed analysis of domestic
violence and the Turkish government’s progress and failings to address it
in the 2011 and subsequent progress reports on Turkey.

Continue regular funding streams for
women’s organizations in Turkey that work on domestic violence.

Acknowledgments

This report was written and researched by Gauri van Gulik,
advocate and researcher in the Women’s Rights Division, based on research
she conducted with Janet Walsh, deputy director of the Women’s Rights
Division. Emma Sinclair-Webb, researcher on Turkey, provided assistance with
interpretation in Trabzon, Istanbul and Izmir. The report was reviewed by Janet
Walsh, Emma Sinclair-Webb, Simone Troller, senior researcher in the
Children’s Rights Division, Aisling Reidy, senior legal counsel, and
Danielle Haas, program editor. Chloe Fussell, former associate in the Women’s
Rights Division, Cağlayan
Ayhan-Day, volunteer for the Women’s Rights Division, and Noora Nurminen,
intern for the Women’s Rights Division provided important research
assistance and practical support. Daniela Ramirez and Rumbidzai Chidoori,
coordinator and associate in the Women’s Rights Division, provided
production assistance. Additional production assistance was provided by Grace
Choi, publications director; Anna Lopriore, creative manager; and Fitzroy
Hepkins, mail manager. The report was translated into Turkish by Özlem
Dalkıran and Veysel Eşsiz.

We are grateful to the women and girls who agreed to share
their stories with us and we admire their courage and resilience.

We are grateful to the many women’s rights
organizations and individual lawyers and activists throughout the country that
supported this research and analysis. These organizations include, but are not
limited to, Women for Women’s Human Rights- New Ways, KA-DER, Mor
Çati, KAMER, the Van Women’s Association, the Women’s
Coordination Group in Izmir, the Capital City Women’s Organization in
Ankara, bar associations in several locations, the Women’s Solidarity
Organization in Izmir, Epidem, Local Agenda 21 and many others. Human Rights
Watch takes full responsibility for any errors and omissions in the report.

The Women’s Rights Division of Human Rights Watch
gratefully acknowledges the financial support of Arcadia, the Moriah Fund, the
Trellis Fund, and other supporters.

[1]
Law 4320 on the Protection of the Family, and the 2007 amendment Law No. 5636,
says: “If a spouse or child or another member of the family living under
the same roof, or one of the family members that have the legal right to live
separately or a court ruling for separation or live separately de facto despite
still being married.”

[2]
Council of Europe, “Stocktaking study on the measures and actions taken
in Council of Europe member States to combat violence against women,”
2006, p.8.

[3]
Turkish Republic Prime Ministry Directorate General on the Status of Women,
Hacettepe University Institute of Population Studies, ICON-Institute Public
Sector GmbH, and BNB Consulting, “National Research on Domestic Violence
against Women in Turkey 2008,” January 2009, Figure 4 in the summary
report, http://www.ksgm.gov.tr//tdvaw/doc/Main_report.pdf (accessed February
26, 2011).

[4]According to recent estimates there are a total of 26,162,757
women in the age group 15-60 in Turkey. This age group is smaller than the
Hacettepe study, which interviewed women between 15 and 65, so the mentioned
estimates are conservative. 42 percent of this group means 10, 988,357 women. https://www.cia.gov/library/publications/the-world-factbook/geos/tu.html#
(accessed April 18, 2011).

[8]
Directorate General on the Status of Women, Status of Women in Turkey, 2010,
p.29, in Turkish http://www.ksgm.gov.tr/Pdf/trde_kadinin_durumu_2011_subat.pdf
(accessed March 4, 2011) and reported on in English
http://www.hurriyetdailynews.com/n.php?n=nearly-4-million-turkish-women-illiterate-2011-02-01
(accessed March 4, 2011).

[11]Directorate
General on the Status of Women, Status of Women in Turkey, 2010, p. 10, in
Turkish http://www.ksgm.gov.tr/Pdf/trde_kadinin_durumu_2011_subat.pdf (accessed
March 4, 2011) and reported on in English http://www.hurriyetdailynews.com/n.php?n=nearly-4-million-turkish-women-illiterate-2011-02-01
(accessed March 4, 2011).

[12]
Ibid. The index is based on a range of factors that influence or indicate the
status of women in a society. The factors are: maternal mortality rates,
adolescent fertility rates, percentage of seats in parliament, population with
at least secondary education, labor force participation rate, contraceptive
prevalence rate, antenatal coverage of at least one visit, and births attended
by skilled health personnel.

[13]
Prime Ministry Circular 2006/17,”Measures to be Taken to Prevent Custom
and Honor Killings and Violence against Women and Children,” July 2006.

[15]
Crime prevention and criminal justice measures to eliminate violence against
women: Model Strategies and Practical Measures on the Elimination of Violence
against Women in the Field of Crime Prevention and Criminal Justice, recommended by UN General Assembly Resolution 52/86 of December
12, 1997.

[21]
Law 4320 and the 2007 amendment Law No. 5636. The 2007 amendment stated that
the law applies to “a spouse or child or another member of the family
living under the same roof, or one of the family members that have the legal right
to live separately or a court ruling for separation or live separately de facto
despite still being married.”

[22]
There are no clear statistics available on the prevalence of religious
marriages. A chief prosecutor in Diyarbakır informally estimated the
percentage of legal marriages in Turkey around 95 percent, but in the southeast
as around 65 percent, Human Rights Watch interview with Durdu Kavak, chief prosecutor, Diyarbakır, June 16,
2010.

[38]
Comment of a judge to lawyer Habibe Yılmaz Kayar, related to Human Rights
Watch in an interview, Istanbul, November 12, 2010.

[39]
Article 90 of the Turkish constitution reads: “International agreements
duly put into effect carry the force of law. No appeal to the Constitutional
Court can be made with regard to these agreements, on the ground that they are
unconstitutional.”

[51]
Concluding comments of the Committee on the Elimination of Discrimination
against Women: Turkey, para. 363, February 15, 2005,
http://www.un.org/womenwatch/daw/cedaw/cdrom_cedaw/EN/files/cedaw25years/content/english/CONCLUDING_COMMENTS_ENGLISH/Turkey/Turkey%20-%20CO-5.pdf
(accessed December 30, 2010).

[53]
Human Rights Watch interview with the Women’s Solidarity Foundation
(Kadin Dayanisma Vakfi), June 8, 2010. For more on the violations of the rights
of LGBT people in Turkey, including their problems in getting protection from
violence, see the 2008 Human Rights Watch report “’We Need a Law
for Liberation’: Gender, Sexuality and Human Rights in a Changing Turkey,” http://www.hrw.org/en/reports/2008/05/21/we-need-law-liberation-0.

[54]
Directorate General on the Status of Women, “Combating Violence Against
Women, National Action Plan 2007-2010,“
http://www.ksgm.gov.tr/en/nap_dvaw.php (accessed February 7, 2011).

[69]
For example Protection Order in Istanbul asking for 300TL (US$190) per month
from the husband to the wife, and three Protection Orders from the family court
in Diyarbakır, requesting 250TL (US$150) and 300TL (US$190), on file with
author.

[111]
Department of Economic and Social Affairs; Division for the Advancement of
Women, “Handbook for legislation on violence
against women,” New York, 2009, http://www.un.org/womenwatch/daw/vaw/handbook/Handbook%20for%20legislation%20on%20violence%20against%20women.pdf
(accessed April 5, 2011), p. 48.

[138]
Human Rights Watch interview with a social worker, name and location withheld,
June 9, 2010.

[139]
The length of military service is 15, 12, or eight months, depending on
education level. Certain professional groups (doctors, teachers, civil
servants) may be allowed to perform special service. All men between the ages
of 19 and 40 are required under the constitution and other laws to perform
military service.

[161]Human Rights Watch, “As If I Weren’t
Human”- Discrimination and Violence Against Women with Disabilities in
Northern Uganda, August 2010, http://www.hrw.org/en/reports/2010/08/24/if-we-weren-t-human.

[181]
UN Commission on Human Rights, Report of the Special Rapporteur on Violence
against women, Radhika Coomaraswamy, A framework for model legislation on
domestic violence E/CN.4/1996/53/Add.2 II/B2 February 1996, para 7.

[187]
UN Committee on the Rights of the Child, General
Comment No. 13, Article 19: The right of the child to freedom from all forms of
violence, U.N. Doc. C/GC/13/2011 (2011), p. 9.

[188]
Concluding comments of the Committee on the Elimination of Discrimination
against Women: Turkey, para. 23, August 16, 2010,
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N10/485/60/PDF/N1048560.pdf?OpenElement
(accessed December 30, 2010).

[189]
Report of the special rapporteur on violence against women, its causes and
consequences, Yakın
Ertürk, to the Human Rights Council, January 5, 2007,
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G07/100/90/PDF/G0710090.pdf?OpenElement
(accessed December 30, 2010).

[190]European
Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR),
213 U.N.T.S. 222, entered into force September 3, 1953, as amended by Protocols
Nos 3, 5, 8, and 11 which entered into force on September 21, 1970, December
20, 1971, January 1, 1990, and November 1, 1998, respectively.

[192]
Ibid., para. 128; This reflects long standing jurisprudence from the European
Court. For example, see also European Court of Human Rights, L.C.B. v. the
United Kingdom, (23413/94), judgment of June 9, 1998, para. 36.

[193]Opuz, para. 128, and Osman v. the United Kingdom, (23452/94),
judgment of October 28, 1998, para.115.